EDDIE DEES Dba FAST ACTION BONDING, Appellant V. the STATE of TEXAS, Appellee

865 S.W.2d 461, *

EDDIE DEES dba FAST ACTION BONDING, Appellant v. THE STATE OF TEXAS, Appellee

No. 503-92

COURT OF CRIMINAL APPEALS OF TEXAS

865 S.W.2d 461

September 29, 1993, Delivered

PRIOR HISTORY: Petition For Discretionary Re- est" begins to accrue on the face amount of the bond at view from the Fifth Court of Appeals. (Dallas County) 6% per annum from the date of the judgment nisi. Id. at 706-07. We affirm the judgment of the Court of Appeals.

COUNSEL: For Appellant: Carolyn Findley Price, Ar- 3 Hereinafter referred to as "subsection (c)." lington, Tx. After granting appellant's petition, we held in anoth- er case that subsection (a) is unconstitutional in its entire- For Appellee: John Vance, D. A. & Michael J. Watts, ty. Lyles v. State, 850 S.W.2d 497, 501 (Tex.Cr.App. Asst. D. A., Dallas, Tx. Robert Huttash, State's Attorney, 1993). This was because subsection (a) could not be giv- Austin, Tx. en any effect without utilizing the provisions of subsection (c) which we also had decided is unconstitutional in JUDGES: En Banc. McCormick, Presiding Judge, Mal- its entirety. Id. at 499-501; see also State v. Matyastik, oney, Judge dissents 811 S.W.2d 102, 104 (Tex.Cr.App. 1991); Armadillo Bail Bonds v. State, 802 S.W.2d 237, 241 (Tex.Cr.App. 1990). OPINION BY: MCCORMICK Since these cases dispose of appellant's first ground for review, it is accordingly overruled. OPINION Appellant argues if we decide subsection (a) is in- [*461] OPINION ON APPELLANT'S PETITION FOR valid in its entirety, we also must decide subsection (d) is DISCRETIONARY REVIEW invalid in its entirety to maintain "logical continuity," because, like subsection (a), subsection (d) utilizes the pro- This is a bail bond forfeiture case. The facts are set visions of subsection (c). We rejected that argument in out in the opinion of the Court of Appeals. Dees v. State, Lyles, because, unlike subsection (a), subsection (d) can 822 S.W.2d 703, 704 (Tex.App.--Dallas 1991). We grant- be given effect without utilizing the provisions of sub- ed appellant's petition for discretionary review to deter- section (c). Lyles, 850 S.W.2d at 497. Therefore, based mine (1) whether Article 22.16(a), V.A.C.C.P., 1 is un- on the reasoning of Lyles, we hold only the portion of constitutional in its entirety, (2) whether Article subsection (d) that utilizes the provisions of subsection 22.16(d), V.A.C.C.P., 2 is unconstitutional in its entirety, (c) is unconstitutional; the remainder of subsection (d) is (3) what "costs of court" are authorized in a bail bond constitutional. 4 Appellant's second ground for review is forfeiture case, and (4) when does interest [*462] begin overruled. to accrue on the amount of the bond after forfeiture and what is the proper nomenclature for such interest. 4 Subsection (d) should now be read as follows:

1 Hereinafter referred to as "subsection (a)." "Before the entry of a final judg- 2 Hereinafter referred to as "subsection (d)." ment against the bond, the court in The Court of Appeals held unconstitutional subsec- its discretion may remit to the tion (a) in its entirety, and the portion of subsection (d) surety all or part of the amount of utilizing the provisions of Article 22.16(c), V.A.C.C.P. 3 the bond after deducting the costs Dees, 822 S.W.2d at 706. The Court of Appeals also held of court, any reasonable costs to civil court costs are the appropriate costs to assess in a the county for the return of the bail bond forfeiture proceeding, and "prejudgment inter- principal, and the interest accrued 865 S.W.2d 461, *

on the bond amount as provided taining the sum payable, commencing on by Subsection (e) of this article." the thirtieth (30th) day from and after the time when the sum is due and payable." (Emphasis Supplied). Appellant also argues civil court costs are not authorized in a bail bond forfeiture proceeding; he argues only those court costs normally associated with criminal cases may be assessed. A bail bond forfeiture proceeding 6 The Court of Appeals held Article 5069-1.03 is a criminal law matter governed by the rules of civil applies, and neither party has complained about procedure after entry of the judgment nisi. Article 22.10, this holding in a petition for discretionary review. V.A.C.C.P.; see also State v. Sellers, 790 S.W.2d 316, Dees, 822 S.W.2d at 707. 321 (Tex.Cr.App. 1990); Tinker v. State, 561 S.W.2d 200, 201 (Tex.Cr.App. 1978). Therefore, we hold civil Appellant argues allowing interest on the amount of court costs may be assessed in a bail bond forfeiture pro- the bond to accrue from the date of the judgment nisi, as ceeding after entry of the judgment nisi. See Article the Court of Appeals did here, 7 nullifies "in the same 22.10. manner" language of Article 22.16(e). We disagree. Arti- cle 22.16(e) expressly provides for interest to accrue on Appellant claims the assessment of civil court costs the bond amount "from the date of forfeiture." Article is not authorized under the analysis in Camacho v. 22.16(e) describes only how the interest is to accrue by Samaniego, 831 S.W.2d 804 (Tex. 1992). We find Cama- "using the prejudgment interest rate in civil cases from cho distinguishable. In Camacho, the El Paso County the date of forfeiture." Shaw v. State, 804 S.W.2d 672, Commissioners Court imposed on bail bond issuers a 673 (Tex.App. -Fort Worth 1991, pet. ref'd). For exam- bond approval fee that was collected by the Sheriff. Id. ple, the parties could agree in the bond on how interest is at 805. The Texas Supreme Court held the County could calculated in which case Tex.Rev.Civ.Stat.Ann. Article not impose, and the Sheriff could not collect, the fee be- 5069-1.01(c) would authorize the "manner" for calculat- cause the fee was not authorized by any Texas Statute. ing the interest. See, e.g., Triton Oil and Gas Corp. v. Id. at 805, 815. Here, Article 22.10 expressly authorizes E.W. Moran Drilling Co., 509 S.W.2d 678, 687-88 (Tex.- bail bond forfeiture proceedings to be governed by the Civ.App. -Fort Worth 1974, writ ref'd n.r.e.). We hold rules of civil procedure. 5 Appellant's third ground for re- that when the parties do not agree otherwise, interest be- view is overruled. gins to accrue on the bond amount from the date of forfeiture. 5 We also have held the civil rule setting forth the procedures for recusal of judges applies in 7 822 S.W.2d at 706-07. criminal cases. Arnold v. State, 853 S.W.2d 543, 544 (Tex.Cr.App. 1993). The next question we decide is the date of forfeiture. The Court of Appeals, in effect, held the date of for- Appellant also argues interest on the bond amount feiture is the date the judgment nisi is entered, and we should not begin to accrue until the thirtieth day after the agree. Dees, 822 S.W.2d at 707. Article 22.01, date of forfeiture in accordance with Tex.Rev.Civ.S- V.A.C.C.P., states that when a defendant fails to appear, tat.Ann. Article 5069-1.03 (Vernon 1987). 6 Article a forfeiture of his bail and a judicial declaration of such 22.16(e), V.A.C.C.P., provides: forfeiture shall be taken in the manner provided in Arti-

cle 22.02, V.A.C.C.P. Article 22.02, in effect, provides "For the purposes of this article, interest that a bail bond is forfeited when the trial court signs the accrues on the bond amount from the date judgment nisi. Therefore, we hold the date of forfeiture is [*463] of forfeiture in the same manner the date the trial court signs the judgment nisi. 8 See Arti- and at the same rate as provided for the cles 22.01 and 22.02. accrual of prejudgment interest in civil cases." (Emphasis Supplied). 8 We also note Articles 22.01 and 22.02 appear to provide for the trial court to sign the judgment

nisi on the same date the defendant fails to ap- Article 5069-1.03 provides: pear. "When no specified rate of interest is agreed upon by the parties, interest at the Finally, appellant raises the proper nomenclature of rate of six percent per annum shall be al- the interest for which Article 22.16(e) provides. Appel- lowed on all accounts and contracts ascer- lant claims the Court of Appeals erred in characterizing 865 S.W.2d 461, *

the interest as "prejudgment interest." See Dees, 822 at six percent interest per annum from the date of the S.W.2d at 707. He claims Article 22.16(e) provides for judgment nisi." Dees, 822 S.W.2d at 707. Therefore, we interest on the bond amount from the date of forfeiture, overrule appellant's fourth ground for review, and affirm and not prejudgment interest on the judgment. See gener- the judgment of the Court of Appeals. ally Cavnar v. Quality Control Parking, Inc., 696 S.W.2d McCormick, Presiding Judge 549 (Tex. 1985). Article 22.16(e) expressly provides for interest on the bond amount from the date of forfeiture; (Delivered September 29, 1993) therefore, we hold the proper nomenclature for such in- En Banc terest is "interest on the bond amount after forfeiture." This holding, however, does not affect the judgment of Maloney, J., dissents the Court of Appeals because the Court of Appeals actu- ally calculated "interest on the face amount of the bond White, J., not participating